The application of ex turpi causa
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A number of recent cases show the blurred line between situations where the illegality defence applies and those where it does not, writes Roger Cooper
It is morally repugnant that any person who suffers injury while they are engaged in significant criminal activity should recover compensation in respect of such injury. This concept has been encapsulated in the Latin maxim ex turpi causa non oritur actio (an action cannot be founded on an immoral or base cause).
Having identified a maxim of the law, words of caution should be added. As Lord Esher MR said in Yarmouth v France (1887) 19 QBD 647: ‘I detest the attempt to fetter the law by maxims. They are almost invariably misleading: they are for the most part so large and general in their language that they always include something which is not intended to be included in them.’ How then is the maxim to be applied in respect of road traffic accidents?
The courts have recognised that ex turpi causa finds its justification in policy and it is not a principle of law to be applied robotically in all cases involving injuries sustained in the course of criminal conduct. To do otherwise would lead to absurd results and injustice.
For instance, if a motorist was exceeding a speed limit by a narrow margin when a lorry negligently pulled into the motorist’s path, causing injuries, it would be absurd if the motorist was prevented from recovering damages from the lorry driver purely on account of the motorist’s technical infringement of the speed limit. There clearly will be cases where the borderline between behaviour to which the maxim does apply and those to which it does not is difficult to determine.
Borderline behaviour
In Joyce v O’Brien [2013] EWCA Civ 546, two men stole a set of ladders and placed them in a van without securing them. The claimant stood on the tailgate of the van with the doors open and the ladders sticking out while the defendant drove the van in an attempt to ensure their getaway. The van negotiated a corner too quickly and the claimant was flung from the vehicle, sustaining severe injuries.
The Court of Appeal upheld the trial judge’s finding that the injuries were sustained in the course of a joint criminal enterprise. The court rejected submissions that the proximate cause of the accident was the dangerous driving of the defendant and the criminal enterprise had merely provided the occasion for the negligent driving to occur. The getaway was integral to the joint enterprise of stealing ladders and the theft of ladders was the sort of criminal conduct which was caught by the maxim.
Similarly, where six youths hired a taxi with the intention of running off at their destination without paying for the fare and one was seriously injured as he left the moving vehicle, the criminality in dishonestly attempting to evade the lawful fare was such that it was appropriate to deprive the claimant of compensation on grounds of policy. The Court of Appeal in Beaumont v Ferrer [2016] EWCA Civ 768 upheld the trial judge’s finding that the jumping from the taxi was both the cause of the injuries and integral to the criminality. Notwithstanding any negligence on the part of the taxi driver, the claim had to fail on grounds of policy.
Focus on causation
Contrast Joyce with Delaney v Pickett [2011] EWCA Civ 1532, where the claimant, a passenger, was injured when the car in which he was travelling was negligently driven. Packets of cannabis were found in the vehicle after the accident. The trial judge determined that the purpose of the journey was to transport illegal drugs and found against the claimant, applying ex turpi causa.
However, the Court of Appeal allowed the appeal because the drug-dealing journey had merely been the occasion on which the negligent driving had occurred and had not been the cause of the injuries. It was a question of causation and the claimant’s injuries had not been caused by his criminal wrongdoing.
I respectfully disagree that the application of the maxim should focus on causation. If a terrorist was travelling by tram with the intention of planting a bomb in a city centre but the tram crashed due to the negligence of the tram driver, it would be repugnant to all with a sense of justice if the bomber were able to recover compensation for his injuries from the tram company, even if the ride on the tram with the bomb only provided the occasion on which the terrorist’s injuries were sustained. Yet this reasoning would be consistent with the court’s reasoning in Delaney.
More recently, the Court of Appeal in Smith v Stratton [2015] EWCA Civ 1413 considered a similar set of facts where the claimant, a passenger, had been involved in drug dealing from a motorcar which was subsequently negligently driven in an attempt to evade the police, resulting in a collision and serious injury to the claimant. The trial judge’s finding that the injuries were caused by the criminal wrongdoing was upheld and so the application of ex turpi causa had been correct.
To my mind, there is only a fine distinction between the facts of Delaney and the facts of Smith; if in one case the claimant should be deprived of compensation from the public’s perception it is difficult to understand why the claimant in the other should not be so deprived. In fact, in Delaney the claimant would not have recovered compensation because the negligent driver had been uninsured and the claimant fell foul of one of the exceptions to the Uninsured Drivers’ Agreement operated by the Motor Insurers’ Bureau.
In Blake v Croasdale and Esure Insurance Ltd [2017] EWHC 1336 (QB), the claimant was a passenger in a vehicle which the police sought to stop. Instead of stopping, the driver drove recklessly through a red light and collided with another vehicle. The claimant was seriously injured. Initially, Esure, the insurer of the driver, admitted liability on the assumption that the value of the claim was relatively modest. When the value was indicated to be in the millions, it sought to withdraw the admission, pleading ex turpi causa on the grounds that the claimant and the driver were allegedly involved in a drug-dealing enterprise at the time. Following Joyce, the court allowed the admission to be withdrawn as there was a reasonable prospect of the ex turpi defence succeeding at trial.
Contributory negligence
In McHugh v Okai-Koi [2017] EWHC 710 QB, a motorist became involved in an altercation in a pub car park with a couple who were intoxicated. The couple (a man and a woman) took exception to the way the motorist had parked her car. The woman was aggressive and spoiling for a fight. She tried the doors of the car and climbed onto the bonnet. The motorist was understandably afraid and called for the police, but before the police arrived she panicked and drove off, causing the woman to fall from the car, sustaining fatal injuries. Criminal proceedings were brought against the motorist, which led to an acquittal on a charge of causing death by dangerous driving but a conviction of the offence of causing death by careless driving.
In respect of a Fatal Accidents Act 1976 claim, it was found that the motorist had been negligent in driving away and not waiting for the police to arrive. The defendant maintained that the actions of the deceased woman involved criminality and that the claim should be rejected on grounds of policy. The ex turpi defence was rejected. The judge’s reasoning was that because the defendant had been guilty of criminality, in that she had been convicted of careless driving, it would have been wrong for her to have escaped liability on the grounds of the deceased’s criminality. There was a finding of considerable contributory negligence which was assessed at 75 per cent.
It is hard not to have considerable sympathy for the defendant in McHugh. It must have been very frightening to be confronted by an intoxicated woman, intent on trouble, climbing onto to her bonnet. The defendant’s actions, considered in the safe and sterile atmosphere of a courtroom, seem to have been judged a little harshly – at least in the criminal proceedings.
But it is important to recognise that ex turpi causa is a complete defence and there is no room for apportionment of liability where the defence of illegality applies. The judge in the civil proceedings was striving to do justice to the situation and it may be that justice would not have been served by depriving the deceased’s family of any compensation as an application of ex turpi causa would have done, whereas a reduction of 75 per cent for contributory negligence met the justice of the situation.
Roger Cooper is a barrister at Parklane Plowden